What a wife is entitled to in a divorce settlement in South Africa depends, above all else, on the marital property regime that governs the marriage. The same wife can be entitled to a 50% share of the joint estate, to half of the accrual, or to nothing more than her own separate assets, depending entirely on whether the marriage is in community of property, out of community with accrual, or out of community without accrual. The entitlements are not a fixed list that applies to every wife.
The Divorce Act 70 of 1979, together with the Matrimonial Property Act 88 of 1984, sets out the framework that the court uses to divide assets, award spousal maintenance, share pension interest, and make orders for children. The court also has a discretion, on the facts of each matter, to make orders that are just and equitable. This page sets out the entitlements that a wife may claim, the regime that drives each entitlement, and the way the court approaches the division.
If you need Family Law assistance with a divorce matter, the Sandton-based Family Law team at Otrebski Attorneys can assess your marital regime, value the assets, and advise on the share you may be entitled to.
The marital property regime drives the entitlement
South African law recognises three default marital property regimes, with the chosen regime being fixed at the date of the marriage. The court does not switch regimes on divorce; it applies the regime that the parties chose (or that applied by default) when they married.
- In community of property. The parties share one joint estate. All assets and all liabilities, whenever acquired, fall into the joint estate. On divorce, the joint estate is divided equally, and a wife is entitled to a 50% share, subject to the court’s limited discretion.
- Out of community of property with accrual (antenuptial contract with accrual). Each spouse keeps a separate estate during the marriage, but the growth (accrual) in each estate from the date of marriage to the date of divorce is shared. The wife is entitled to half of the net accrual of the other spouse’s estate, once the accrual is calculated.
- Out of community of property without accrual (antenuptial contract excluding accrual). Each spouse keeps their own assets and their own liabilities. On divorce, there is no automatic sharing of assets between the spouses, and a wife is entitled only to the assets in her own name.
The first step in any divorce is therefore to establish the marital property regime. Otrebski Attorneys will obtain the antenuptial contract, where one exists, and confirm the regime with the Deeds Office before advising on entitlements.
A share of the joint estate or the accrual
Where the marriage is in community of property, the wife is entitled to an equal share of the joint estate. The joint estate includes the family home, the bank accounts, the vehicles, the investments, and the pension interest, as well as the debts. The 50/50 split is the default, and the court can depart from it only in narrow circumstances.
Where the marriage is out of community with accrual, the wife is entitled to half of the net accrual. The accrual is calculated by taking the difference between the opening value of each spouse’s estate (at the date of marriage) and the closing value (at the date of divorce), with certain inheritances and donations excluded. The spouse whose estate showed the larger accrual pays half of the difference to the other.
Where the marriage is out of community without accrual, there is no automatic sharing, and the wife keeps only what is in her name.
Spousal maintenance under section 7(2)
Section 7(2) of the Divorce Act 70 of 1979 allows the court to order spousal maintenance (often called alimony) on divorce, regardless of the marital property regime. A wife who has given up work to raise children, who earns less than her spouse, or who cannot support herself at the standard of living of the marriage may claim maintenance for herself.
The court weighs a list of factors set out in section 7(2), including the parties’ respective means, their earning capacity, their ages, the duration of the marriage, the standard of living during the marriage, and any fault that is relevant. The order can be for a fixed period, for a lifetime, or until remarriage, and the court can also decline to make any maintenance order at all.
Redistribution of assets under section 7(3)
Section 7(3) of the Divorce Act gives the court a discretion to transfer assets from one spouse’s estate to the other’s where the marriage was out of community of property (without accrual) and was entered into before 1 November 1984. This remedy, often called a redistribution order, was designed to soften the harshness of the pre-1988 regime for wives who contributed to a marriage without legal recognition.
The court will only make a redistribution order if it is just and equitable, and the wife must show a basis for the order on the facts. The factors are similar to those for accrual: the direct and indirect contributions made by each spouse, the duration of the marriage, and the parties’ respective circumstances. The claim must be specifically pleaded, and Otrebski Attorneys will advise whether a section 7(3) claim is open on the facts of your matter.
A share of the pension interest
The pension interest of a spouse is treated as an asset of the marriage for the purposes of divorce, regardless of the regime. In a marriage in community of property, the pension interest forms part of the joint estate. In a marriage out of community with accrual, the pension interest is included in the accrual calculation. The wife can therefore claim a share of the pension interest, and the share is paid out by the fund directly on receipt of a divorce order that complies with the rules of the fund.
The payment is governed by the Government Employees Pension Law, the Pension Funds Act 24 of 1956, and the rules of the specific fund, and the drafting of the order is technical.
Children and the best-interests standard
Where there are children, section 7 of the Children’s Act 38 of 2005 and section 28 of the Constitution make the best interests of the child the paramount consideration. Both parents must contribute to the children’s maintenance, in proportion to their respective means, regardless of the marital property regime.
The wife, as the primary caregiver in many families, will usually receive the child maintenance for the children’s school fees, medical costs, clothing, and general living expenses. The court also decides on the primary residence of the children and the contact that the other parent will exercise, always through the lens of the best interests of the child.
What a wife is not automatically entitled to
It is just as important to be clear about what a wife is not automatically entitled to. In a marriage out of community without accrual, she has no automatic claim to a share of the other spouse’s separate estate. There is no automatic entitlement to the family home, no automatic entitlement to half of every account, and no automatic entitlement to lifetime maintenance. Each claim depends on the regime, the statute, and the facts.
How the court reaches a just and equitable outcome
The overarching principle is that the court seeks a just and equitable outcome, within the framework of the marital property regime. The court will weigh the length of the marriage, the contributions of each spouse (direct and indirect, financial and non-financial), the parties’ respective earning capacities, and the needs of any children. The same standard applies regardless of which spouse is the wife and which is the husband, and the court has shown, in decided cases, that it treats the spouses equally on the facts.
These are the patterns that leave a wife with the wrong outcome in a divorce settlement.
- Assuming a 50/50 split without checking the marital property regime. The regime is the starting point, and an out-of-community-without-accrual marriage produces no automatic sharing.
- Forgetting the section 7(3) redistribution claim in a pre-November 1984 marriage. The claim must be pleaded, or it is lost.
- Under-valuing the indirect contributions. Raising children and running the home are contributions that the court recognises.
- Drafting the pension-sharing order incorrectly. A non-compliant order can leave the fund unable to pay out.
- Letting the dispute escalate into a contested trial without first attempting settlement. Many matters settle at the round-table meeting stage.
Frequently Asked Questions
What is a wife entitled to in a divorce settlement in South Africa?
A wife is entitled to a share of the joint estate, to half of the net accrual, or to her own separate estate only, depending on the marital property regime. She may also claim spousal maintenance under section 7(2) of the Divorce Act 70 of 1979, a redistribution of assets under section 7(3) in certain pre-1984 marriages, a share of the pension interest, and child maintenance for the children.
Is a wife entitled to 50% of everything in a divorce in South Africa?
Only where the marriage is in community of property. In a marriage out of community with accrual, she is entitled to half of the net accrual. In a marriage out of community without accrual, there is no automatic 50% sharing at all.
Can a wife claim spousal maintenance after divorce in South Africa?
Yes, under section 7(2) of the Divorce Act 70 of 1979. The court weighs the parties’ respective means, their earning capacity, their ages, the duration of the marriage, the standard of living during the marriage, and other listed factors.
Is a wife entitled to a share of her husband’s pension on divorce?
Yes. The pension interest is treated as an asset of the marriage for divorce purposes, and the share is paid out by the fund on receipt of a divorce order that complies with the rules of the fund.
What is a section 7(3) redistribution order?
Section 7(3) of the Divorce Act 70 of 1979 gives the court a discretion to transfer assets from one spouse’s estate to the other where the marriage was out of community of property (without accrual) and was entered into before 1 November 1984. The order is made only if it is just and equitable.
Is a wife entitled to the family home in a divorce?
There is no automatic entitlement to the family home. The home is treated as part of the joint estate or the accrual calculation and is divided on the same basis as the other assets.
Can a husband claim the same entitlements as a wife in a divorce in South Africa?
Yes. The Divorce Act and the Matrimonial Property Act apply regardless of gender, and a husband can claim spousal maintenance, a redistribution order, a share of the accrual, and a share of the pension interest on the same basis as a wife.
Get help with your divorce. If you need help with a divorce, Otrebski Attorneys’ Family Law team in Sandton can assist. We are a 100% women-led firm, Level 4 B-BBEE rated, and we hold a 5-star Google rating across 12 reviews. Director Nastasja Otrebski leads our Family Law department, and we offer compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about what a wife may be entitled to in a divorce settlement in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979, the Matrimonial Property Act 88 of 1984, the Children’s Act 38 of 2005, and the Pension Funds Act 24 of 1956, all of which may be amended. Confirm the current position with a family attorney before relying on anything in this article. Cost considerations for divorce in South Africa can vary significantly based on individual circumstances, including the length of the marriage and the assets involved. Understanding these factors is essential for both parties to navigate the financial implications of divorce effectively. It is advisable to consult with legal and financial experts to ensure all aspects are thoroughly evaluated.